Many EU states want to allow the US access to biometric police data

The US demand for direct and extensive access to biometric police databases of the EU and its member states has triggered a debate among EU countries regarding the modalities, legal basis, and data protection for such an agreement. In principle, European governments do not reject the "Partnership for Enhanced Border Security" offered to them, as revealed by a Council of Ministers document leaked by the civil liberties organization Statewatch, outlining the positions of EU states. However, there are still concerns in detail.

In essence, US law enforcement agencies and the Department of Homeland Security (DHS) are demanding access to national police immigration databases. They aim to identify individuals who could pose a "threat to US security." The initiative, titled Enhanced Border Security Partnership (EBSP), aims to match travelers' fingerprints and facial images with data from their own databases in the areas of crime and terrorism.

In 2023, the EU Commission presented a proposal for a framework agreement to enable bilateral agreements between US authorities and EU countries. The biggest incentive for complying with this request lies in maintaining their participation in the Visa Waiver Program (VWP), which allows their citizens to travel to the US without a visa. Washington threatens to withdraw this privilege if the EU denies the requested access rights. Since almost all EU countries participate in the VWP, there is, according to the confidential Council document, a willingness to generally reach an agreement.

German Federal Government Advocates for Clear Limits

However, the scope of US access is contested. Washington has a strong interest not only in querying national databases but also in gaining direct access to large central EU information systems such as the Visa Information System (VIS), the shared Biometric Matching Service (sBMS), and the Common Identity Repository (CIR). Such direct access by a third country to EU databases would be unprecedented and would require agreements extending beyond the scope of the current Commission proposal. Austria, for example, signals openness to exploring ways.

The concerns of many member states focus on the protection of sensitive data and the automation of processes. Countries like the Netherlands, Austria, France, and Italy reject automated transmission of personal background information and biometric characteristics in case of a hit without human verification.

The Netherlands, instead, calls for information exchange based on "Hit/No-Hit" requests, where additional information is shared after a hit only with the consent of the responsible authorities through appropriate channels. While the German Federal Government signals openness to an EU agreement, it wants to impose clear limits on US authorities. It strictly denies direct access to foreign databases and wants a deletion regulation.

Italy emphasizes that direct access must not occur under any circumstances. Systematic or routine queries of individuals without prior suspicion must be excluded. In contrast, the Czech Republic advocates for the broadest possible agreement, including automated decision-making.

Deal by End of 2026 Unrealistic

The proposed data transfer is intended to verify whether a traveler's entry or stay could pose a risk to "public safety or order." Lithuania and Belgium demand a more precise definition of these "ambiguous" terms. They want to ensure that the agreement only concerns the fight against crime or terrorist offenses.

The choice of legal basis in the EU treaties is also an issue. France argues that negotiating an EBSP framework agreement is not an exclusive EU competence, as the proposals also touch upon areas of national jurisdiction. Together with Ireland, Paris therefore pushes for closer involvement of the member states in the negotiation process. Ireland, which is not part of the Schengen area, also fears being excluded from discussions despite its VWP participation.

Finally, the tight deadlines set by the US are causing discontent. Estonia and the Netherlands consider the request to conclude all relevant agreements by the end of 2026 to be unrealistic. The latter points to the complexity of the matter, the necessary approval of the EU Parliament, and the subsequent negotiation and approval of bilateral agreements by national parliaments. Discussions in the Council on the extensive biometric data transfer are ongoing.

(mho)